Volume 8 — Michigan Reports

Case reserved from the Wayne Circuit. Joseph A. Moross and others, claiming under an instrument purporting to be tbe last will and testament of Antoine Beaubien, presented tbe same to the Probate Court for 'the county of Wayne, for probate and allowance, but on bearing, the same was disallowed.

The relator being the owner of an undivided interest, in a lot in the city of Detroit, which had been sold for city taxes assessed thereon for the year 1857, applied to the city treasurer to redeem such undivided interest from the sale, and claimed a right to do so on payment of a proportionate amount of the tax assessed upon the whole lot.

Case reserved from the Circuit Court for the county of Wayne, as follows: “This was an action of trespass vi et armis, brought by Lorman against Benson.

From the return to the writ of error, it appeal's that plaintiff in error took an appeal to the Circuit Court from the decision of commissioners, appointed by the Probate Court of said county, to examine and adjust claims against the estate of Henry M. Fish deceased.

From the pleadings and proofs, it appears that on May 13th, 1858, the defendants, composing the firm of Holmes & Co., were indebted to Waldo, Barry & Co., of New York, in the sum of $5,576 19, besides interest, upon four promisory notes; and being embarrassed in their circumstances, entered into an agreement with them for a compromise of the demand for $2,949 97, for which amount they gave their note at eight months, and turned out as collateral security to it, a note…

Carr sued Wyekoff in the court below, in trover, for a stock of goods which Wychoff, as sheriff of Jackson county, had taken on attachments as tho property of one Pool. Carr claimed the goods by virtue of a general assignment made to Mm by Pool for the benefit of creditors.

Wyllis sued Wyckoff, who is Sheriff of Jackson County, in tr'over, and declared for the conversion of a span of horses, a harness and wagon, and a peddler’s stock of goods, which Wychoff had taken by virtue of an attachment against the goods and chattels of Wyllis. The case is sufficiently stated in the opinion.

Case reserved from Ingham Circuit. In November, 1856, one Davidson executed and delivered to defendant a promisory note for $200, payable eighteen months after date, to defendant or bearer. January 2, 1857, defendant sold this note to plaintiffs, and at the same time endorsed thereon the following guaranty: “ I guarantee the collection of this note. January 2d, 1857.

Case reserved from Kalamazoo Circuit. The action was originally brought by Cahill against the-plaintiffs in error, before a justice of the peace, where he declared as follows: “ The said plaintiff, by Giddings & May, his attorneys, complains of the said defendants for this, that heretofore, to wit; on the 15th day of December, 1858, the said defendants were the occupants of a certain grist-mill situate and being in the township of Kalamazoo, in the county of Kalamazoo, and…

From the return to the certiorari, it appears that on the thirty-first day of January, 1859, there was presented to the Circuit Judge of said seventh circuit, two certified copies of the recognizance .of special bail, taken May 3, 1856, in a cause pending in the Circuit Court for the county of Ingham, between Richard Elliott, as plaintiff, and Owen Dudley, as defendant, entered into by Horace Green and John 0.

The action was trespass, for the taking by defendants in error of certain personal property which plaintiff claimed to have taken, and to be. entitled to hold, as sheriff of Ionia county, by virtue of several writs of attachment to him directed and delivered, against the goods, &c., of Hiram T. Barstow, and Henry A. Nash,-tested in April and May 185Í.

Habeas Corpus. The petition set forth that petitioner on August 27th, 1859, was convicted in the Recorder’s Court of Detroit, of larceny in a dwelling house, and sentenced to the House of Correction (now State Reform School) until he should arrive at the age of twenty-one years; that he was taken to said House of Correction in pursuance of said sentence, and remained there until March 10th, 1860; that on March 7th, 1860, the prosecuting attorney of Wayne filed an application…

<p>Appeal in Chancery from Shiawassee Circuit.</p>

The action was ejectment, originally brought in the County Court of Lapeer county, April 21st, 1848, and from thence, after judgment for the defendants, removed to the Circuit Court by certiorari, November 23d, 1848, where the judgment of the County Court was affirmed.

The defendant Avas convicted in the Recorder’s Court of Detroit, on a complaint under an ordinance of said city, for obstructing a public alley. On motion being made for a new trial, based upon certain exceptions taken to the rulings of the court, the Recorder reserved the questions arising on such motion for the opinion of this court.

The defendant was charged, by information, Avith having, on the first day of March, 1860, at the city of Detroit, uttered and passed as true, to one Arthur Gore, a certain false, forged, and counterfeit bank bill, of the denomination of two dollars, payable to the bearer thereof on demand, purporting to be issued by the Agricultural Bank, an incorporated banking company in the state of Illinois, and engaged, in the business of a bank in that state, with intent, On the trial,…

Habeas • Corpus. Certain persons being charged, before a justice of the peace of Clinton county, with the crime of murder, the relator, who was a telegraph operator, was called and sworn as a -witness, on the preliminary examination of such persons for the offense charged, and a question put to him relative to telegrajDh communications, supposed by the prosecution to have been sent and received by the defendants or some of them, by or through him, which question he declined…

Questions reserved from Oakland Circuit. In October, 1857, the plaintiffs recovered against the 'defendants, in the Circuit Court for the county of Oakland, a judgment for. $641 57, upon which execution was issued January 14th 1858.

<p>Error to Wayne Circuit. The facts are sufficiently stated in the opinion.</p>

Case made after judgment, from Shiawassee Circuit Court, into which the cause had been removed by appeal from a justice of the peace. The action was brought to recover interest upon a certificate of which the following is a copy: “State of Michigan. No. 662. 10 Shares: Detroit and Milwaukee Railway Company.

Question reserved from Kent Circuit, where defendant was indicted for unlawful banking, and a special verdict found. The indictment was found at the December term, 1858.

<p>On exceptions from the Recorder’s Court of Detroit.</p>

<p>Proceedings in the Circuit Court, under ,the Bastardy Act, can not’ be removed into tbis court by writ of error.</p>

Appeal in Chancery, by defendants Horace and Norman Green, from Shiawassee Circuit. The court having decided (ante p. 74), that the copies of the Judge’s minutes of the testimony, taken on the trial, could not be considered, the cause went to a hearing on the question whether the bill of complaint was sufficient on its face, to entitle complainant to any relief against the appellants. The allegations in the bill are sufficiently shown by the opinion.

From the hill of exceptions in the case, it appears that when the clerk had drawn from the jury box tbe names, of twelve jurors, “ the counsel for the defendant being asked by the court if they had any objections to any of the persons so called as jurors as aforesaid, then and there inquired of the said persons, so called as jurors, touching their indifferences between the said People and the said defendant, and as to whether or not they or any of them had formed or…

February 10th, 1855, an act was passed by the Legislature, providing that, for the purpose of improving a highway from Lower Saginaw to the village of Vassar, in Tuscola county, and from thence to some point to be selected near the center of town ten north of range eight east, with branches to the village of Goodrich, and to the village of'Lapeer, all the -non-resident highway taxes which should be assessed within the limits of the surveyed townships, through or into which…

Griggs & Co., one hundred dollars, and charge to account of Rowe & Co.” January 26, 1858.

The error assigned was, that there was no service of process upon Finn. After error assigned, the court below, on motion of defendants in error, amended the record so as to show judgment against O’Flynn only.

Case reserved from Wayne Circuit Court as follows: “This was an action of replevin, brought to recover one chestnut stallion called JaeJcsonian.” “There was evidence that on the 20th of March, 1858, F. W. Backus was the owner of the horse in question; that on that day he executed a chattel mortgage — but without any change of possession of the property — conveying this and other property to S. P. Brady.

Tbe plaintiff in error was tried on an information for tbe murder of one Isaac Blanchard, and convicted of manslaughter.

Appeal by complainant from the Wayne Circuit in chancery. Held: which Knapp attended. At that meeting he exhibited to the stockholders what copper he had found, as the result of his operations for that season, and gave an account of the discouraging prospects of their adventure in mining.

Motion to dismiss an appeal in chancery, for the insufficiency of the appeal bond. There was • nothing upon the bond, or in the transcript returned, to show that, previous to the execution of the bond, the amount of the penalty had been fixed by a Circuit Judge or circuit court commissioner; and the approval endorsed upon it, which was signed by the circuit court commissioner, was in the following words: “ I approve of this bond, both in form and substance.”

Questions reserved from Montcalm Circuit in chancery, where Canso Crane, one of the defendants, had interposed a 'demurrer to the bill of complaint, for multifariousness. The case is sufficiently stated in the opinion.

The action was by Hinsdale against plaintiffs in error, in replevin. The defendants (below) justified under execution against the plaintiff, issued upon a judgment rendered by Garry Spencer, a justice of the peace.

Case reserved from Wayne Circuit in Chancery. The bill was filed against the city of Detroit, and William Cook, city collector, to restrain the collection of a tax assessed for the grading and paving of a part of Fort street.

The cause was tried in the Circuit Court without a jury, and from the finding of the Circuit Judge, it appears that on April 20, 1855, Crane entered into an agreement with O’Reily, signed by both, to sell to the latter certain premises in Detroit, for $1,350, payable, $50 down, and the balance with interest in nineteen equals quarterly instalments, on the payment of which, with all taxes, Crane was to convey to him the premises.

Defendant in error brought suit in the court below, against William Hale, and Wilbur F. Storey, on a promissory note made by Hale, payable to the order of Story, and by.him endorsed, and which was declared upon as the only cause of action. Story appeared and pleaded to the declaration, and Hale suffered default. A rule was afterwards entered, making the default adsolute, and referring it to a jury to assess the plaintiff’s damages.

<p>In an action for breach of promise to marry, it is not necessary for plaintiff to prove that defendant was of full age when the promise was made.</p> <p>In such «an action it is not error to allow proof that defendant borrowed money of plaintiff, and renewed his notes therefor immediately before marrying another; as it is important for the jury to understand as fully as possible the mutual conduct of the parties during the existence of the contract, as well as tho causes and circumstances attending the breaking off of the engagement.</p> <p>¡Proof of the frequent intermarriage of the ancestors of the parties, who are cousins, and of the evil tendency of the marriage of relations in producing deformed or sickly and imbecile children, is incompetent — tho contract of marriage not hav-» ing been broken on any such ground.</p>

Clair Circuit. The pleadings in this case may be found in *1 Mich. 162. Subsequent to the decision of the questions there passed upon by this court, the plaintiff in error put in a plea of Not Guilty, was tried, convicted of murder in the second degree, at the November term, 1859, and sentenced to six years imprisonment in the state prison. Exceptions were filed, and a writ of error taken to this court.

The action was by Wadsworth, on the common counts. The bill of particulars specified certain cows, heifers, horses and goods, sold by him to plaintiffs in error, and also a promissory note given by them to him for three hundred and ninety dollars. The defendants pleaded the general issue, with notice of recoupment, which, together with the evidence given under it, are sufficiently stated in the opinion of Judge Christiancy.

The plaintiff iu error was charged with the murder of Jane Harding, on the thirty-first day of May, 1858. On the trial, at an adjourned term of said court, in November, 1858, James Ransom, a • witness for the prosecution, testified that the deceased was the wife of Abram L. Harding, and formerly lived in Maple Grove, in Barry county. She removed from Maple Grove in September, 1857, to Napoleon, in Jackson county.

The township of Oregon, by act of the Legislature of 1846, was organized from territory constituting a part of the township of Marathon.

<p>On tlic hearing of an application for a mandamus, the -party showing cause is entitled to open and close the argument.</p> <p>Under the present Constitution and statutes, all moneys which are paid into the office of the county treasurer, on account of fines, penalties, forfeitures and recognizances, are to be credited to the Library Fund, and apportioned and paid over by the treasurer to the proper local officers, without any deduction for expenses, either attending the collection of the particular sums paid in, or embracing the general criminal expenses of the county. The taxable costs in proceedings to collect, should be kept separate, and do not belong to this fund.</p>

Appeal by defendant Henderson from Genesee Circuit •in Chancery.

Questions reserved from Wayne Circuit. The action was brought against James I. David and James Campbell, as survivors, &o. of Daniel C. Vreeland, who together, during the summer of 1855, constituted a partnership, which was dissolved by the death of Vreeland, in November of that year.

On November lfth, 1856, the defendant in error presented to the Probate Court of Washtenaw county, impróbate 0and allowance, an instrument purporting to be the last will and testament of Gertrude or Gitty Fletcher, the wife of William A. Fletcher, bearing date June 11th, 1824, and made under an ante-nuptial agreement with her husband, of the date of November 28th, 1820.

The action was assumpsit, brought by defendant in error before a justice of the peace. The judgment of the justice in his favor was removed to the Circuit Court by certiorari, and being affirmed by tliat court, was brought hero by writ of error.

On April 23d, 1859, Genevieve Callendar presented to said Circuit Court Commissioner a petition, under §101 of the tax law of 1858, to have certain tax titles held by one Merchant, upon ¿and claimed by her, set aside and annulled.

Plaintiff in error was convicted on an information which charged that he, “on the 13th day of April, in the year of our Lord one thousand eight hundred and fifty-nine, about the hour of ten o’clock in the night time of the same day, with force and arms, at the township aforesaid, in the county aforesaid, the storehouse of one John Vaughn, there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of the said John Vaughn, in the said…

The action was upon the common counts in assumpsit. The plaintiff claimed to recover of defendant the sum of $13,000 as money had and received by the latter to the use of the plaintiff, on or about August 25, 1853, and interest thereon from that time, as part of the purchase price of certain lands in Houghton county hereinafter described, which it was admitted the plaintiff had owned on and previous to March 23, 1853.

Nall & Duncklee sued Granger, in replevin, tor certain oxen and a horse, which they claimed under a chattel mortgage given by M. H. Crafts, September 1st, 1857. Defendant claimed the property as purchaser at a sale of the same, made November 23d, 1857, by the sheriff of Eaton county, by virtue of an execution against Crafts.

From the bill of exceptions it appears that during the year IBS'!, Houghton was superintendent and engineer of the Board of Water Commissioners for the city of Detroit: that to carry out the objects and purposes contemplated by the act under which they were organized, said Board owned and possessed sundry iron water pipes and other materials, and had in their employ laborers engaged in laying down said pipes in the streets, alleys, and other public grounds of the city; and…

<p>In a contract for the conveyance of land, the time, place and. mode of payment, are not considered, matters of substance, unless by the express stipulations of the parties they are declared to ho so, or unless from the special nature of the case, and the necessary intention and understanding between the parties, thoy must be deemed material. Therefore, where on a bill for the specific performance of a parol agreement for the purchase and conveyance of lands, the contract as proved varied in these particulars from that set out in the hill, but corresponded in other respects; Held, that the variance was not material.</p> <p>Where the parties to an agreement have not expressly stipulated that performance at a particular time shall be an essential part cf the agreement, and where from the nature and circumstances of the contract, and the situation of the parties, there would bo no particular hardship upon the party against whom 'the execution of the contract is sought to bo enforced, — the conduct of the party in default not being unfair, or his claim unconscicntious — a Court of Equity, so far as performance at the timo is concerned, will aid the party in default, and decree a specific execution of the agreement as the only adequate measure of equitable justice between the parties.</p> <p>Where under a parol contract for the purchase and conveyance of lands, the vendor had caused the land to be surveyed, and received upwards of one half of the purchase price, and put the vendee in possession, and had permitted him to retain that possession for several years in reliance upon the contract, without taking any steps to put an end to it; Held, that these acts of the vendor constituted such a part performance as to take the case out of the operation of the Statute of Frauds, and entitle the vondoe to a specific performance of the agreement.</p> <p>In a bill for the specific performance of a parol contract for the conveyance of land, the general facts relied upon, showing a part performance as a ground for taking the case out of the Statute of Frauds, and for enforcing the agreement, must be specifically set forth. And where* evidence had been taken in the case showing valuable improvements made by complainant on the land in controversy, but there was no allegation in the bill with respect to such improvements; Held, that such evidence could not be considered in the decision of the cause.</p>

Moores died pending the suit. On the trial the plaintiff called as a witness Theodore Evans, who testified that plaintiff was a brick-layer: that the book produced by witness was plaintiff’s book of account in which he charged brick delivered by him, and from which he made out his bills.

The action was brought in the court below against defendant as endorser of a note of which the following is a copy: “ Detroit, July 20th, 1855.

<p>Partners must sue in tlieir individual names. A writ of replevin issued on belialf of partners in the name of their firm is a nullity.</p>

Joseph Circuit. Defendants in error, composing tbe firm of Secor, Bebdan & Co.,’'brought suit in the court below, against plaintiffs in error as persons composing the “White Pigeon Farmers and Mechanic’s Mercantile Association,” to recover the amonnt of an account for merchandise sold the Association.

Replevin Tby plaintiff in error against William P. Laing Amos Gould and Ebenezer Gould.

Ward brought assumpsit iu the court below, against William Warner and Albert L. Catlin, and declared for the use by defendants of a certain canal across lands of the plaintiff, in St. Clair county, in floating the logs and lumber of the defendants in and through the same. On the trial, the following stipulation was read in evidence. “In the Circuit Court for the county of Wayne: Eber Ward v. Albert L. Catlin and William Warner.

<p>Error to St. Joseph Circuit. The case is sufficiently stated in the opinion.</p>

Masten brought replevin against Smalley, to recover a span of horses and wagon, which the latter, as Sheriff of Jackson county, had levied upon by virtue of an execution against Masten, who claimed tbe same as exempt, to enable him to carry on the business of farming.

Freeland ¡presented to the commissioners appointed by the Probate Court to pass upon demands against the estate of Abram LaRoe, a claim for the building of a house and barn, and for certain other improvements, on land belonging to deceased; and this claim having been allowed by the Commissioners, the administrator appealed.

<p>A municipal corporation which, creates a private nuisance is prima facie liable for its continuance.</p>

<p>Where a landlord, during the continuance of a lease, without the consent of the tenant enters upon the demised premises, which have been vacated^ by the tenant, and the entry is followed by a continuous possession inconsistent with the possessory right assured to tho tenant by the lease, such possession amounts to an eviction, and precludes the recovery of rent while it continues</p> <p>And this is so whether the entry be for condition broken or not. If for condition broken, it signifies an intention to terminate the lease entirely; while if the landlord regard the lease as still continuing, the right to rent. is suspended during the occupancy.</p>

Action by LaRoe, against Roeser, in trespass for causing plaintiff to be arrested and imprisoned in Saginaw county jail.' Defendant, who is a justice of the peace, justified under the following proceedings: June 14, 1859, Garrett Freeland made complaint against plaintiff, before defendant, as follows: “ State of Michigan, county of Saginaw ss: Garrett Freeland, of Tittabawassee in said county, on his oath complains, that on the 18th day of June, 1859, James LaRoe, Jefferson…